Springer v. United States

Referred to U.S. Magistrate Judge^[1]

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ, UNITED STATES MAGISTRATE JUDGE

Based on the relevant filings and applicable law, the United States' Motion to Dismiss Plaintiff's First Amended Complaint and Memorandum in Support Thereof, filed on March 15, 2021 (doc. 12), should be granted in part, and Plaintiff's claims against it should be DISMISSED without prejudice for lack of subject matter jurisdiction. Mark Christian and Ernesto Rosales' Individual Defendants' Motion to Dismiss and Memorandum in Support Thereof, filed on March 15, 2021 (doc. 13), should be granted in part, and Plaintiff's claims against them should be DISMISSED with prejudice for failure to state a claim. The Bureau of Prisons' (BOP) Motion to Dismiss Plaintiff's FOIA Claims, received on March 15, 2021 (doc. 14), should be granted, and Plaintiff's claim against it should be DISMISSED without prejudice as moot. Plaintiff's motion for leave to file a sur-reply (doc. 27) is DENIED.

I. BACKGROUND

Plaintiff Lindsey Kent Springer (Plaintiff) claims that he was exposed to asbestos and mold while working in a warehouse at the Federal Correctional Institution in Seagoville, Texas (FCI-Seagoville), where he was incarcerated. (doc. 3 at 1.) Alleging that this exposure and the Defendants' subsequent response violated his rights under the Eighth Amendment to the

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Constitution; the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-2680; and the Freedom of Information Act (FOIA), 5 U.S.C. § 552 et seq., Plaintiff sues the United States; the BOP; Mark Christian, the former acting environmental and safety compliance administrator of FCI-Seagoville (Administrator); and the former assistant warden of FCI-Seagoville, Ernesto Rosales (Warden) (collectively, Defendants), for both monetary and injunctive relief. (doc. 3 at 1, 3-4.)

A. The Warehouse

Plaintiff alleges that FCI-Seagoville houses a warehouse (Warehouse) that was built in the late 1930s and was presumably constructed and built using “Asbestos Containing Material.” (Id. at 5) (citing 29 C.F.R. §§ 19.10.1001(a), (b), and (j)(2)). Shared by the Food Service Department, Trust Fund Commissary, and Laundry Department, it had previously been found to contain “cancer causing asbestos.” (Id.) The warehouse contains two storage rooms (Storage 1 and 2) that have been used as (1) a morgue, (2) freezers for the inmates' food, and (3) dry storage rooms for a variety of products, ranging from toilet paper to dangerous chemicals used to clean the prison. (Id.) As of November 1, 2016, both rooms were controlled by the Food Service Department. (Id. at 7.)

On or about April 1, 2017, the freezer system in Storage 1 went down, and the assistant food service administrator decided to convert the room into a dry storage area for food service. (Id.) This process entailed moving the contents of Storage 1 into Storage 2, as well as into “mobile freezers positioned outside and around the Warehouse and Facilities.” (Id.) On or about May 1, 2017, the assistant food administrator began to use Storage 1 as a dry storage room for the inmates' food. (Id. at 8.) At this point, Storage 2 contained a freezer controlled by the Food Service Department. (Id.) The assistant food service administrator could see the “inmate food was being covered (outer surfaces to card board boxes) with a fine dusty substance and chunks of a black surface, apparent

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to all the source of which was from the ceiling and walls therein.” (Id.) He therefore decided that Storage 1 would no longer be used to store inmate food; it was instead converted into a chemical storage room. (Id.) At this point, Storage 1 and 2 had solid doors, approximately 8 inches thick with a built-in defrost mechanism, with a latch, lock, and seal. (Id.)

On or about July 1, 2017, in anticipation of an annual inspection, the food service administrator determined that Storage 1 and 2 would fail inspection, so they were “abandoned.” (Id. at 9.) Both rooms had a history of leaking water from under the solid doors, and Storage 2 leaked water in “such a magnitude that repairing it before inspection was not feasible...” (Id.) The food service administrator emailed the trust fund administrator and advised that the Food Service Department would no longer be responsible for anything involving Storage 1 and 2, and the Food Service Department locks were removed from both doors. (Id.) At some point in July 2017, the freezer system in Storage 2 broke down, and its contents were moved into a mobile freezer trailer outside the warehouse. (Id.)

On or about September 1, 2017, the Warehouse supervisor emailed Administrator about the falling substances as well as the strong odor in both storage rooms. (Id.) At this point, it was routine for inmates to “clean off” the dusty and black matter that had fallen from the walls and ceilings from property being removed from Storage 2 before delivery to its final destination. (Id.)

Around September 23, 2017, Warden, Administrator, and other individuals examined the Warehouse. (Id. at 11.) Administrator tested the black substance in both storage areas on October 20, 2017, and found that the substance and smell was only mildew. (Id.) On or about October 27, 2027, Administrator and other individuals appeared at the Warehouse in full body suits and with respiratory protection to spray a soapy substance into both rooms. (Id.) Before spraying,

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Administrator had all inmates, including Plaintiff, remove all property from the storage areas. (Id.)

As of November 15, 2017, both storage rooms were “completely open and exposed to the elements of the weather due to their position in the breeze-way part of the [W]arehouse.” (Id.) Between roughly December 15, 2017, through January 15, 2018, two “gate style doors” were manufactured for the rooms, allowing the air from inside the storage areas to filter into the breeze ways while keeping property secure . (Id. at 11-12.) The new gate doors did not stop the strong odor, however. (Id. at 12.) Also, the dust and “black chunks” covering the property increased in volume, “only now both were compiling outside [the rooms] and [evident from] the air of the Breeze-way and the floor.” (Id.) During the winter months of 2017-2018, the breeze-way doors remained closed, allowing the heat to remain inside the Warehouse as much as possible and circulating the air from the storage rooms into the surrounding areas. (Id.)

On or about July 1, 2018, both Administrator and Warden left FCI-Seagoville for other positions. (Id.) In July 2018, a new safety administrator arrived and visited the Warehouse. (Id. at 13.) In early September 2018, the new safety administrator announced that he would have the walls and ceilings in the storage areas tested, rejecting Administrator's “mildew prognosis.” (Id.) On or about October 9, 2018, the new safety administrator tested the substances falling from the ceilings. (Id.) The next day, commissary staff placed two 8.5 by 11 inch signs on the doors, which stated that neither staff or prisoners were to enter either room. (Id.) The new safety administrator had Plaintiff and another inmate cover both doorways with a sign stating, “Danger, Asbestos, May Cause Cancer, Cause Damage to Lungs, Authorized Personnel only. 29 CFR [1910-1001(j)(4)(I)]. C. Rees, Safety Manager Ext. 4431.” (Id.)

On October 18, 2018, the new safety administrator informed Plaintiff that the percentage of

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cancer-causing asbestos in the storage rooms was 10%, and the strong odor came from a major case of mold in both rooms. (Id. at 14.) The new safety administrator explained these findings to the Warehouse supervisor and other prisoners. (Id.)

Beginning on or about May 6, 2019, and continuing through May 14, 2019, ARC Abatement “performed abatement procedures regarding the Asbestos and Mold found falling from the walls and ceilings in both” storage rooms. (Id. at 17.)

B. Plaintiff's Exposure

Plaintiff was incarcerated at FCI-Seagoville from March 16, 2016, through September 12, 2019. (Id. at 5.) During that time, he often worked in or in close proximity to the storage rooms. Starting in April 2016, his first job was with the laundry department, which was located above the power plant and connected to the Warehouse. (Id. at 5.) He was then relocated into a third storage room adjacent to Storage 2. (Id. at 6.) On or about November 1, 2016, Plaintiff was promoted to the position of Warehouse clerk, and his desk was located just outside of the Warehouse staff office. (Id.) In addition to moving property to and from the Warehouse, he was tasked with keeping its overall appearance clean, and he usually spent an hour each day sweeping the front deck of the Warehouse and the breeze-way areas just outside of the storage areas. (Id. at 6-7.)

On or about April 1, 2017, Plaintiff was tasked with tearing down and removing the shelf system in Storage 1 in connection with moving its contents to Storage 2, cleaning it throughly, and re-assembling it in the laundry department. (Id. at 7.) He alone “totally cleaned all the foreign substances, ” which consisted of dusty, dry, black chunks and black smaller substances, that were on the shelf, the floor, and scattered throughout the room. (Id.) At no time was Plaintiff instructed to wear any kind of protective gear, or informed by the Warehouse staff that the substance being

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cleaned contained “cancer-causing asbestos or breath-taking mold.” (Id. at 7-8.)

On or about June 1, 2017, Plaintiff assisted the food service administrator in “removing safety notices from the second floor of food service [W]arehouse” and moving them inside Storage 1. (Id. at 8.)

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